Kantola Productions: Hi, Linda. Thanks for taking the time to answer some questions about AB 2053 for us. Can you give us a quick summary of the law and how it relates to the harassment and training legislation that already existed in California?

Linda Garrett: Certainly. Effective January, 1, 2015, “prevention of abusive conduct” must be included as a component of the AB 1825 biennial sexual harassment and discrimination training provided to managers and supervisors in California. Other than adding “prevention of abusive conduct,” as defined, to the required training, and removing references to initial training date requirements, AB 2053 does not substantively change Government Code 12950.1 in any other way.

KP: Is “abusive conduct” the same as illegal discrimination and harassment?

LG: No. AB 2053 does not make “abusive conduct” or “bullying” a new form of unlawful employment practice. However, if the abusive conduct/bullying is also linked to a protected characteristic and satisfies the definition of “harassing behavior” then it would be illegal (as it has always been).

KP: How did this newer bill and these definitions come about?

LG: Proponents of AB 2053 cited studies that bullying is common in the workplace and costs as much as $200 billion annually as a result of reduced productivity and morale, absenteeism, frequent turnover, and increases in medical and workers’ compensation claims.

KP: What was the impact of the regulations released by the California Department of Fair Employment and Housing (DFEH) effective April 1, 2016?

LG: These amended regulations were written to clarify the already existing obligations of employers to take reasonable steps to prevent, and promptly correct discrimination or harassment in the workplace. They do not alter existing law, but provide important guidelines on training, company policies, investigations and other employer responsibilities. For example, we know that discrimination “on the basis of sex” is illegal, but now the Department has clarified and expanded the definition to include gender identity, gender expression, and transgender status.

LG: That’s right. In the 2016 California eLearning course entitled Sexual Harassment: Training for a Harassment-Free Workplace, one scene portrays two colleagues who humiliate and exclude another, cynically heaping extra work on him in the name of “teamwork.” Another scene shows bullying in a hospital setting, and a third portrays abusive conduct by a supervisor who learns the hard way that bullying is no substitution for good management.

In the eLearning course called Harassment : Sex, Religion & Beyond, the narrators discuss bullying behaviors (including those that are not linked to a protected characteristic) as something to be discouraged. A clear example of bullying behavior depicted in the video involves an employee who endures increasing harassment based on perceived sexual orientation.

In your Sexual Harassment: A Commonsense Approach course, the example of the worker who is humiliated at his birthday party clearly displays “bullying” behavior. Also, a sympathetic coworker alludes to other incidents where he has been the target of jokes or endured things that may have been done deliberately to cause him embarrassment.

All three of the Kantola interactive eLearning courses clearly define “abusive conduct” and include the message that these behaviors (even when not linked to protected characteristics) hurt morale, cause problems for employees and even bigger problems for employers. They also violate most employers’ Codes of Conduct and general policies that everyone be treated with dignity and respect.

Existing law makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employer’s knowledge. Existing law further requires every employer to act to ensure a workplace free of sexual harassment by implementing certain minimum requirements, including posting sexual harassment information posters at the workplace and obtaining and making available an information sheet on sexual harassment.

Existing law also requires employers, as defined, with 50 or more employees to provide at least 2 hours of training and education regarding sexual harassment to all supervisory employees, as specified. Existing law requires each employer to provide that training and education to each supervisory employee once every 2 years.

This bill would additionally require that the above-described training and education include, as a component of the training and education, prevention of abusive conduct, as defined.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 12950.1 of the Government Code is amended to read:

12950.1. (a) An employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position. An employer covered by this section shall provide sexual harassment training and education to each supervisory employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

(b) An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).

(c) The state shall incorporate the training required by subdivision (a) into the 80 hours of training provided to all new supervisory employees pursuant to subdivision (b) of Section 19995.4, using existing resources.

(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer’s compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.

(e) If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.

(f) The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.

(g) (1) For purposes of this section only, “employer” means any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.

(2) For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.